[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Rules and Regulations]
[Pages 57357-57361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28186]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NC-95-01; FRL-5332-2]
Clean Air Act Final Interim Approval Of Operating Permits
Program; State of North Carolina, Western North Carolina, Forsyth
County, and Mecklenburg County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: EPA is promulgating interim approval of the operating permit
program submitted by the State of North Carolina Department of Health
(DEHNR), Western North Carolina Regional Air Pollution Control Agency
(WNCRAPCA), Forsyth County Department of Environmental Affairs (FCDEA),
and Mecklenburg County Department of Environmental Protection (MCDEP)
for the purpose of complying with Federal requirements for an
approvable State program to issue operating permits to all major
stationary sources, and to certain other sources.
EFFECTIVE DATE: December 15, 1995.
ADDRESSES: Copies of the North Carolina State and local agency
submittals and the other supporting information used in developing the
final interim approval are available for inspection during normal
business hours at the following location: U.S. Environmental Protection
Agency, Region 4, 345 Courtland Street, NE., Atlanta, Georgia 30365.
Interested persons wanting to examine these documents, contained in EPA
docket number NC-95-01, should make an appointment at least 24 hours
before the visiting day.
FOR FURTHER INFORMATION CONTACT: Scott Miller, Title V Program
Development Team, Air Programs Branch, Air Pesticides & Toxics
Management Division, U.S. EPA Region 4, 345 Courtland Street NE.,
Atlanta, GA 30365, (404) 347-3555 extension 4153.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the 1990 Clean Air Act Amendments (the Act) and the
implementing regulations at 40 Code of Federal Regulations (CFR) part
70 require that States develop and submit operating permits programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. If the
State or local agency submittals are changed during the one-year review
period, 40 CFR 70.4(e)(2) allows EPA to extend the review period for no
more than one year following
[[Page 57358]]
receipt of additional materials. EPA received the North Carolina State
and local agency submittals on November 12, 1993. The State and local
agencies provided EPA with additional materials in supplemental
submittals dated December 17, 1993; February 28, 1994; May 31, 1994;
and August 9, 1995. Because the supplements materially changed the
State and local agency title V program submittals, EPA extended the
one-year review period.
EPA reviews state and local operating permit programs pursuant to
section 502 of the Act and the part 70 regulations, which together
outline criteria for approval or disapproval. Where a program
substantially, but not fully, meets the requirements of part 70, EPA
may grant the program interim approval for a period of up to two years.
If EPA has not fully approved a program by November 15, 1995, or by the
end of an interim program, it must establish and implement a Federal
operating permit program for the state or local agency.
On August 29, 1995, EPA proposed interim approval of the operating
permits program for the DEHNR, WNCRAPCA, FCDEA, and MCDEP. See 60 FR
44805. The August 29, 1995 notice also proposed approval of the DEHNR,
WNCRAPCA, FCDEA, and MCDEP interim mechanism for implementing section
112(g) and for delegation of section 112 standards and programs that
are unchanged from the Federal rules as promulgated. Public comment was
solicited on these proposed actions. In this document, EPA is
responding to the comments received and taking final action to
promulgate interim approval of the North Carolina State and local
operating permit programs.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
On August 29, 1995, EPA proposed interim approval of the DEHNR,
WNCRAPCA, FCDEA, and MCDEP title V operating permit programs. See 60 FR
44805. The program elements discussed in the proposal notice are
unchanged from the proposal notice and continue to substantially meet
the requirements of title V and part 70. For detailed information on
EPA's analysis of North Carolina State and local program submittals,
please refer to the Technical Support Document (TSD) contained in the
docket at the address noted above.
EPA received one letter during the 30-day public comment period
held on the proposed interim approval of the North Carolina State and
local agency programs. The commenter requests that EPA extend the title
V permit application submittal deadline for at least two years from the
effective date of approval for the DEHNR, WNCRAPCA, FCDEA, and MCDEP
due to the complexity and evolving nature of the title V program. The
application submittal deadline is a function of North Carolina State
and local law in response to the original part 70 regulations
promulgated July 21, 1992. See 57 FR 32250. Section 503(c) of the Act
requires all title V facilities to submit an application to the
relevant state and local permitting authorities within one year after
the effective date of the title V program approval. The DEHNR,
WNCRAPCA, FCDEA, and MCDEP programs fulfill this statutory requirement.
Therefore, EPA denies the request to extend the title V permit
application submittal deadline for at least two years from the
effective date of approval for the DEHNR, WNCRAPCA, FCDEA, and MCDEP
title V operating permit programs.
The commenter requests that insignificant activity levels for
hazardous air pollutants (HAP) should be set no lower than the section
112(g) de minimis levels for individual pollutants. The commenter is
concerned that ``increases above the 112(g) de minimis levels trigger a
complex review process and the State should be given the flexibility to
reserve limited resources for more significant modifications.'' Section
70.4(b)(2) requires state and local agencies to include in their part
70 programs any criteria used to determine insignificant activities or
emission levels for the purpose of determining complete applications.
Section 70.5(c) states that an application for a part 70 permit may not
omit information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate appropriate fee
amounts. Section 70.5(c) also states that EPA may approve, as part of a
state program, a list of insignificant activities and emissions levels
which need not be included in permit applications. Under part 70, a
state or local agency must request and EPA may approve as part of that
state's or local agency's program any activities or emission levels
that they wish to consider insignificant. Part 70, however, does not
establish emission thresholds for insignificant activities. EPA has
accepted emission thresholds of five tons per year for criteria
pollutants, and the lesser of 1000 pounds per year or section 112(g) de
minimis levels for HAP, as reasonable.
The commenter urges EPA to limit the amount of fees that may be
charged to a facility to be limited to the presumptive minimum ($25/ton
of actual emissions adjusted annually to the Consumer Price Index
(CPI)). The Act leaves to state discretion the structure of the title V
fee schedule provided it meets the requirement of presumptive minimum
or cost of the program. The DEHNR, FCDEA, and MCDEP fee schedules were
set to raise, in the aggregate, the presumptive minimum based on
estimates of title V source numbers and emissions. The flat fee plus
tonnage fee formula was recommended by a State-legislatively
established Clean Air Act Advisory Council to reflect work effort to
issue and enforce permits. It was adopted by the Environmental
Management Commission after public hearings. This fee formula means
that some sources will pay less than a straight $25 plus inflation per
ton fee, and some will pay more. In the aggregate, fee revenue has not
exceeded the presumptive minimum. In the North Carolina State and local
agency proposed program approval notice, EPA noted submittal of fee
demonstrations from the DEHNR, FCDEA, and MCDEP that showed each
program will collect the presumptive minimum fee. The WNCRAPCA
submitted a title V program fee demonstration that demonstrated that it
will collect less than the presumptive minimum. Therefore, the DEHNR,
WNCRAPCA, FCDEA, and MCDEP have in effect accommodated the commenter's
request.
The commenter requested that EPA urge the DEHNR, WNCRAPCA, FCDEA,
and MCDEP to set aside any surplus monies generated in the title V
operating permit program to be placed in a separate interest-bearing
account. The commenter further requests that these funds should be
applied as a credit against fees required in succeeding years,
according to the proportion of the total of all emissions fees which
were paid by a title V facility in a timely manner. As previously
stated, the Act leaves to state discretion the structure of the title V
fee schedule provided it meets the requirement of presumptive minimum
or cost of the program. State statutes provide that the fees go into a
separate title V nonreverting account. State statutes do not provide
for interest, as they would have to for interest to be credited. State
statutes do provide for reductions of fees when and if the funds in the
account exceed the title V program cost for the next fiscal year.
The commenter requests that EPA urge DEHNR, WNCRAPCA, FCDEA, and
MCDEP to adopt a list of ``trivial activities,'' as outlined in the
EPA's ``White Paper for Streamlined
[[Page 57359]]
Development of Part 70 Permit Applications'' as well as develop a
process for approving trivial activities on a case-by-case basis. EPA
notes that DEHNR, WNCRAPCA, FCDEA, and MCDEP have an insignificant
activities list found at 15A NCAC 2Q.0102 and respective local agency
regulations which include activities that do not have to be included in
a title V permit application. Should the State and local programs elect
to utilize the list of trivial activities from the ``White Paper for
Streamlined Development of Part 70 Permit Applications,'' they may do
so at their own discretion. In addition, DEHNR, WNCRAPCA, FCDEA, and
MCDEP have complete discretion over whether to create a process for
case-by-case determinations of trivial activities. EPA recommends that
the commenter make any such request to DEHNR, WNCRAPCA, FCDEA, and
MCDEP.
Finally, the commenter took opportunity to make comments regarding
provisions of the part 70 supplemental revisions published on August
31, 1995. See 60 FR 45530. This rulemaking exclusively covers the
DEHNR, WNCRAPCA, FCDEA, and MCDEP title V operating permit programs
which are being approved under the existing regulations found at 40 CFR
part 70. EPA recommends that the commenter provide comment on the
proposed part 70 revisions to the appropriate rulemaking docket for the
subject rulemaking found at 60 FR 45530 (August 31, 1995).
B. Final Action
1. Title V Operating Permit Program
EPA is promulgating interim approval of the operating permits
program submitted by the DEHNR, WNCRAPCA, FCDEA, and MCDEP on November
12, 1993, and supplemented on December 17, 1993; February 28, 1994; May
31, 1994; and August 9, 1995. The DEHNR, WNCRAPCA, FCDEA, and MCDEP
must make the following changes to receive full program approval:
(a) Revise Regulation 15A NCAC 2Q.0507 (MCAPCO Regulation 1.5507,
FCAQTC Regulation 3Q.0507, and WNCRAPCARR Regulation 17.0507) to
require an applicant to include all fugitive emissions regardless of
whether such emissions will be used to determine title V applicability.
These fugitive emissions estimates may be of a qualitative nature as
opposed to a numerical quantitative emission estimate.
(b) Revise Regulation 15A NCAC 2Q.0502(c) (MCAPCO Regulation
1.5502(c), FCAQTC Regulation 3Q.0502(c), and WNCRAPCARR Regulation
17.0502(c)) to assure that R&D facilities which are collocated with
manufacturing facilities and which are under common control and
belonging to a single major industrial grouping will be considered as
the same facility for determining title V major source applicability
for a facility. This change will not be necessary in the event that EPA
promulgates revisions to part 70 that are similar to the DEHNR,
WNCRAPCA, FCDEA, and MCDEP current treatment of R&D facilities for
purposes of title V applicability.
(c) Revise Regulation 15A NCAC 2Q.0102(b)(2)(B) and respective
local agency regulations to adjust the insignificant emission threshold
levels downward from potential emissions of 40 tpy to potential per
emission unit levels for insignificant activities of 5 tons per year
for criteria pollutants and the lesser of 1000 pounds per year or
section 112(g) de minimis levels for HAP. The DEHNR, WNCRAPCA, FCDEA,
and MCDEP must also revise Regulation 15A NCAC 2Q.0102(b)(2)(F) and
respective local agency regulations to provide that the list granted
under 15A NCAC 2Q.0102(b)(2)(F) must be subject to the above-mentioned
potential emission caps.
(d) Revise Regulation 15A NCAC 2Q.0514(a)(4) and respective local
agency regulations to clarify that administrative permit amendments may
be used to change test dates or construction dates only as long as no
applicable requirements would be violated by doing so. Also, the DEHNR,
WNCRAPCA, FCDEA, and MCDEP agencies must change the language of
Regulation 15A NCAC 2Q.0514(a)(4) and respective local agency
regulations to clarify that an administrative permit amendment may be
used to move terms and conditions from the State-enforceable side of
the permit to the State and Federal enforceable portion of the permit
provided that the term being moved is a requirement which has become
Federally enforceable through sections 110, 111, or 112 or other parts
of the Clean Air Act.
(e) Revise Regulation 15A NCAC 2Q.0515(f) and respective local
agency regulations to stipulate that a permit shield may not be granted
for a minor permit modification. In addition, the DEHNR, WNCRAPCA,
FCDEA, and MCDEP must change Regulation 15A NCAC 2Q.0515(d) and
respective local agency regulations to specify that in the event an
applicant submits a single minor permit modification which exceeds the
thresholds listed in 15A NCAC 2Q.0515(c), the minor permit modification
must be processed within 90 days after receiving the application or 15
days after the end of EPA's 45 day review period, whichever is later.
(f) Revise Regulation 15A NCAC 2Q.0517(b) and respective local
agency regulations to provide that a title V permit shall be reopened
and reissued within 18 months after a newly applicable requirement is
promulgated. Also, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must amend
Regulation 15A NCAC 2Q.0517(b)(2) and respective local agency
regulations to clarify that no reopening of a permit is required only
if the effective date of a newly applicable requirement is after the
expiration of the permit, unless the term of the permit was extended
based on the fact that the DEHNR, WNCRAPCA, FCDEA, and MCDEP had not
renewed the permit prior to its expiration.
(g) Revise Regulation 15A NCAC 2Q.0518(f) and respective local
agency regulations to remove the phrase ``subject to adjudication.''
The scope of the DEHNR, WNCRAPCA, FCDEA, and MCDEP part 70 programs
approved in this document applies to all part 70 sources (as defined in
the approved program) within the State, except any sources of air
pollution over which an Indian Tribe has jurisdiction. See, e.g., 59 FR
55813, 55815-55818 (November 9, 1994). The term ``Indian Tribe'' is
defined under the Act as ``any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village,
which is Federally recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians.'' See section 302(r) of the CAA; see also 59 FR
43956, 43962 (August 25, 1994); 58 FR 54364 (October 21, 1993).
This interim approval, which may not be renewed, extends until
December 15, 1997. During this interim approval period, the State of
North Carolina is protected from sanctions, and EPA is not obligated to
promulgate, administer, and enforce a Federal operating permits program
in the State. Permits issued under a program with interim approval have
full standing with respect to part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this final interim approval, as does the three-year
time period for processing the initial permit applications.
If the State of North Carolina fails to submit a complete
corrective program for full approval by June 16, 1997, EPA will start
an 18-month clock for mandatory sanctions. If North Carolina then fails
to submit a corrective program that EPA finds complete before the
[[Page 57360]]
expiration of that 18-month period, EPA will be required to apply one
of the sanctions in section 179(b) of the Act, which will remain in
effect until EPA determines that North Carolina has corrected the
deficiency by submitting a complete corrective program. Moreover, if
the Administrator finds a lack of good faith on the part of North
Carolina, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determines
that North Carolina has come into compliance. In any case, if, six
months after the application of the first sanction, North Carolina has
not submitted a corrective program that EPA has found complete, a
second sanction will be required.
If EPA disapproves North Carolina's complete corrective program,
EPA will be required to apply one of the section 179(b) sanctions on
the date 18 months after the effective date of the disapproval, unless
prior to that date the State has submitted a revised program and EPA
has determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of North Carolina, both sanctions under section 179(b) will
apply after the expiration of the 18-month period until the
Administrator determines that the State has come into compliance. In
all cases, if, six months after EPA applies the first sanction, North
Carolina has not submitted a revised program that EPA determines to
have corrected the deficiencies that prompted disapproval, a second
sanction will be required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if a state
has not timely submitted a complete corrective program. Moreover, if
EPA has not granted full approval to a state program by the expiration
of an interim approval and that expiration occurs after November 15,
1995, EPA must promulgate, administer, and enforce a Federal operating
permit program for that state upon interim approval expiration.
2. Preconstruction Review Program Implementing Section 112(g)
EPA is approving the use of the North Carolina State and local
agency's preconstruction review programs found in Regulation 15A NCAC
2Q.0300 and respective local agency regulations as a mechanism to
implement section 112(g) during the transition period between
promulgation of EPA's section 112(g) rule and the North Carolina State
and local programs adoption of rules specifically designed to implement
section 112(g). This approval is limited to the implementation of the
112(g) rule and is effective only during any transition time between
the effective date of the 112(g) rule and the adoption of specific
rules by the North Carolina State and local agencies to implement
112(g). The duration of this approval is limited to 18 months following
promulgation by EPA of section 112(g) regulations, to provide the North
Carolina State and local agencies with adequate time to adopt
regulations consistent with Federal requirements.
3. Program for Delegation of Section 112 Standards as Promulgated
The requirements for part 70 program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of a
state and local program for delegation of section 112 standards
promulgated by EPA as they apply to title V sources. Section 112(l)(5)
requires that the State and local programs contain adequate
authorities, adequate resources for implementation, and an expeditious
compliance schedule, which are also requirements under part 70.
Therefore, EPA is approving under section 112(l)(5) and 40 CFR 63.91,
the North Carolina State and local programs for receiving delegation of
section 112 standards and programs that are unchanged from the Federal
rules as promulgated. EPA is also approving the delegation of all
existing standards under 40 CFR parts 61 and 63. This program for
delegation applies to both part 70 and non-part 70 sources.1
\1\ The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State and local operating
permit programs for part 70 sources. There is not yet a Federal
definition of ``major'' for radionuclide sources. Therefore, until a
major source definition for radionuclide is promulgated, no source
would be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under part 70 for another reason, thus requiring a part
70 permit. EPA will work with the State and local agencies in the
development of a radionuclide program to ensure that permits are
issued in a timely manner.
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Based on the delegation requests North Carolina submitted by North
Carolina and each local agency, EPA has determined that all
requirements (i.e., legal authority, available resources,
implementation schedules, and compliance mechanisms) necessary for
delegation have been satisfied. As the delegation relates to the
existing NESHAP standards, the effective date of the delegations would
be the date the individual standards become effective as a matter of
State or local law. For future standards, the State of North Carolina,
once State approved, will utilize automatic adoption as its delegation
mechanism. Hence, all standards will be state effective on the date of
EPA promulgation. Subsequent (or within thirty days) to the State's
delegation, the local programs will seek delegation of Federal
authorities. During the interim period between Federal promulgation and
the effective local delegations, the North Carolina State and local
programs will continue to implement the standards, excluding
enforcement actions, under a Memorandum of Agreement entered into with
EPA. EPA will retain primary enforcement authority until the respective
effective dates for each promulgated standard becomes State and locally
effective. The most efficient use of State, local and EPA resources
would dictate usage of this streamlined approval approach, thereby,
negating the need for either the North Carolina State or any of the
local programs to submit additional demonstrations of authority
sufficiency, resource availability, and/or implementation mechanisms
for any requests that are not approved with this title V approval
action.
III. Administrative Requirements
A. Docket
Copies of the State and local agency submittals and other
information relied upon for the final interim approval, including the
one public comment letter received and reviewed by EPA on the proposal
notice, are contained in docket number NC-95-01 maintained at the EPA
Region 4 Office. The docket is an organized and complete file of all
the information submitted to, or otherwise considered by, EPA in the
development of this final interim approval. The docket is available for
public inspection at the location listed under the ADDRESSES section of
this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permit programs submitted to
satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
[[Page 57361]]
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate, or to the private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the proposed interim approval action
promulgated today does not include a Federal mandate that may result in
estimated costs of $100 million or more to state, local, or tribal
governments in the aggregate, or to the private sector. This Federal
action approves pre-existing requirements under state or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to state, local, or tribal governments, or to the private sector,
result from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: November 2, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for North
Carolina in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
North Carolina
(a) Department of Environment, Health and Natural Resources,
Western North Carolina Regional Air Pollution Control Agency, Forsyth
County Department of Environmental Affairs and the Mecklenburg County
Department of Environmental Protection: submitted on November 12, 1993,
and supplemented on December 17, 1993; February 28, 1994; May 31, 1994;
and August 9, 1995; interim approval effective on December 15, 1995;
interim approval expires December 15, 1997.
(b) (Reserved)
* * * * *
[FR Doc. 95-28186 Filed 11-14-95; 8:45 am]
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